Excel Construction, Inc. v. HKM Engineering, Inc.
2010 WY 34 (Wyo. Mar. 23, 2010)

The Supreme Court of Wyoming recently reexamined its prior ruling barring a contractor’s assertion of negligence claims against design professionals economic loss rule.

The case pertained to a construction project for the replacement and improvement of water and sewer lines in the Town of Lovell, Wyoming. The Town of Lovell entered into an engineering services agreement with HKM Engineering, Inc. The Town also entered into a construction agreement with Excel Construction, Inc. No contract existed between HKM and Excel.

James J. Gory Mechanical Contracting Inc. v. Travelers Casualty & Surety Co.
2010 Phila. Ct. Com. Pl. Lexis 20 (Phila. CCP Feb. 8, 2010)

In February 2005, Surety issued payment bond of over $45 million on behalf of the general contractor for construction of student housing project at Temple University. Under terms of the payment bond, any claim, suit or action had to be brought within two years of bond’s issuance. General contractor entered into plumbing subcontract with Plaintiff, who certified that its work was 100% complete in October 2006. However, general contractor only paid Subcontractor for 95% of the work it completed.

DuBaldo Electric, LLC v. Montagno Construction, Inc.
119 Conn. App. 423; 2010 Conn. App. LEXIS 55 (Conn. App. Feb. 23, 2010)

Subcontractor, DuBaldo Electric contracted with general contractor, Montagno Construction to perform electrical work in connection with the renovation of retail space leased by Burlington Coat Factory.
DuBaldo had estimated that it could complete the work in 3200 man hours over the scheduled ten week period. Issuance of the permit required for DuBaldo to commence its electrical work was delayed three weeks due to deficiencies in Burlington’s architectural design and understaffing at the City electrical inspector’s office. Unable to perform the electrical work without a permit, DuBaldo fell approximately three weeks behind. Nevertheless, Montagno refused to update the schedule. To make up for lost time, DuBaldo agreed to work 7 days a week with overtime. In addition, Montagno hired Globe Electric to work along side DuBaldo, and deducted from DuBaldo’s account the amount it paid to Globe for work performed within DuBaldo’s scope.

North Amer Spec Ins. Co. v. Ames Corp./Dawson Building Contractors, Inc. JV
2010 U.S. Dist. LEXIS 25748 (S.D. Fla. Mar. 10, 2010)

Defendant Ames Corporation/Dawson Building Contractors, Inc. (Ames/Dawson), as general contractor, engaged American Roofing, LLC (American Roofing) to perform roofing work at the Veterans Administration Medical Center located in West Palm Beach, Florida. Plaintiff North American Specialty Insurance Company (NAS), as surety, issued performance bonds on behalf of American Roofing, naming Ames/Dawson, as obligee.

Boro Construction, Inc. v. Ridley School Dist.
2010 Pa. Commw. LEXIS 124 (Pa. Commw. Ct. Mar. 8, 2010)

The Pennsylvania Commonwealth Court ruled that where a contractor failed to submit an application for final payment, a school district was excused from its duty to tender final payment. At the same time, the Court held that the school district was not entitled to attorney’s fees pursuant to language in the contract’s no damage for delay clause because the clause specifically stated that the contractor was only required to reimburse the agency if it “loses [the] litigation,” and in this case, the contractor defeated some of the agency’s counterclaims.

Law Co. v. Mohawk Construction & Supply Co. Inc.
2010 U.S. Dist. LEXIS 24302 (D. Kan. March 16, 2010)

The United States District Court for the District of Kansas recently considered the enforceability of a no-damages-for-delay clause in a construction subcontract. After finding that the clause was enforceable, the Court rejected each of the exceptions urged by the subcontractor.

The matter before the District Court involved a series of contracts entered into with regard to the construction of a Cessna C-10 Citation Service Center in Wichita, Kansas (the “Project”). The project owner, Cessna Aircraft Company, retained plaintiff, The Law Company, Inc. (“Law”), to provide general construction services in connection with the Project. In turn, Law, entered into a series of subcontract agreements, including one with Mohawk Construction and Supply Company, Inc. (“Mohawk”). Mohawk’s subcontract contained a no-damages-for-delay provision, particularly providing that Mohawk’s sole remedy for delay was an extension of time.

Dew Electric, Inc. v. Mass Electric Construction Co.
2010 U.S. Dist. LEXIS 19904 (W.D.N.C. Mar. 5, 2010)

Defendant Mass-Aldridge, a Joint Venture, (“MAJV”) entered into two contracts with the Charlotte Area Transit System (“CATS”) to construct CATS’ new South Corridor Light Rail Project. Under the first contract, MAJV agreed to construct the Traction Power & Overland Catenary System and under the second contract, MAJV agreed to construct the Train Control & Communication system (collectively the “Prime Contracts”). In furtherance of its work under the Prime Contracts, MAJV entered into a subcontract for each project (collectively the “Subcontracts”) with Plaintiff Dew Electric, Inc. (“Dew”).

Flagstaff Affordable Housing LP v. Design Alliance, Inc.
223 P.3d 664, 2010 Ariz. LEXIS 11 (Ariz. Feb. 12, 2010)

In 1995, the Owner of a low income housing project, Flagstaff Affordable Housing Limited Partnership contracted with Design Alliance, Inc. (“Architect”) for the design of the Project. The design had to comply with the Federal Fair Housing Act’s (“FFHA”)accessibility guidelines. The Owner also contracted with Butte Construction Company (“Contractor”) for the construction of the apartments. The Project was completed in 1996.

Universal Concrete Products Corp. v. Turner Construction Co.
595 F.3d 527 (4th Cir. Feb. 19, 2010)

Universal Concrete Products Corp. (“Universal”) sued Turner Construction Co. (“Turner”) for breach of contract and several other claims seeking payment for $885,507 worth of precast concrete work Universal had completed at the Granby Tower construction project in Norfolk, Virginia (“Project”).

Universal had entered into a written subcontract with Turner for the installation of precast concrete at the Project. Turner had a prime contract with the project owner’s to provide general construction work on the Project. The Project fell through in March 2008 when the owner could no longer finance it. By that point, however, Universal had already substantially completed all of its work at the Project. Turner, however, had not paid Universal for any of the work performed because Turner had not yet been paid by the owner. When Universal sought payment from Turner for the work performed, Turner refused citing a pay-when-paid provision in the subcontract.

S&B/BIBB Hines PB3 Joint Venture v. Progress Energy Florida, Inc.
2010 U.S. App. LEXIS 2875 (11th Cir. Feb. 11, 2010)

S&B/BIBB Hines PB3 Joint Venture, S&B Engineers and Contractors, LTD (“S&B) agreed to perform engineering, procurement and construction on a fixed-price basis (the “Contract”) for two electric generating plants in Polk County for the project owner and defendant, Project Energy Florida, Inc. (“Project Energy”). During the course of construction, four hurricanes struck Polk County resulting in a shortage of labor and materials and a corresponding increase in the cost of construction for S&B. S&B sought approximately $40 million in additional compensation as a result of this extraordinary event. S&B’s claim for additional compensation was denied by Project Energy and S&B filed suit. The district court dismissed the majority of S&B’s breach of contract and other claims on a Rule 12(b)(6) motion holding that the fixed price Contract precluded additional compensation beyond the Contract price.